When it comes to determining the validity or reliability of a long
accepted technique of personal identification, it has become fashionable
to disparage anything done by researchers of the past, and to substitute
for accumulated wisdom and experience the word of individuals on the margins
of a professional discipline who do a literature search on a topic in which
they have some interest, and who profess to have found a state of affairs
lacking in merit. In some cases, the disparaging view is largely arrived
at because the critics lacked sufficient familiarity with the techniques
used in a discipline and because they have never actually "done" the work;
in other situations, it is spawned by a frustration of what academics see
as a lack of what we in the post-Daubert world like to refer to as "empirical
validation" of a technique. But the reason for the disparagement is often
of secondary importance. Of crucial import in hammering home the criticism
is to find that some people in the discipline under attack -- in reality
a miniscule number of them -- have made a mistaken identification!

Never mind that these few mistaken identifications were exposed by other
law enforcement experts and resulted in the removal of incompetent, negligent
or fraudulent individuals from the profession. Never mind that qualified
defense expert testimony to establish such errors is readily available.
Never mind that a few of the cases used to illustrate "unreliability" involved
actual fraud, which could of course not be prevented by requiring proper
training and experience of the examiners. All that matters is that critics
attacking a discipline find one that can be attacked as non-scientific,
where they can point to "mistakes" or "fraud" to taint a profession, and
find a willing audience of one: a judge deciding an admissibility-of-expert-evidence
question. And to find a forum within which to litigate such issues has
of course become easy in the aftermath of United States Supreme Court decisions
modifying the rules under which the admissibility of expert opinion evidence
is to be judged. And some critics are all too willing to argue that all
expert opinion evidence that cannot be expressed with a negligible mathematical
error rate -- as the DNA model supposedly does (although it really doesn't!)
-- fails to meet Daubert criteria.

After 20 or more similar attempts, in the last two years, to unseat fingerprint
evidence, all unsuccessful, critics found such an audience. The case to
which we refer is United States v. Carlos Ivan Llera Plaza, a district
judge's ruling rendered on January 7, 2002, following a Frye-Daubert submission
of documents by the parties on the admissibility of fingerprint identification
evidence. The documents submitted consisted of the testimony in the case
of United States v. Byron Mitchell, CR No. 96-00407, wherein Judge J. Curtis
Joyner of the Eastern District of Pennsylvania ruled that fingerprint evidence
was admissible under Federal Rule of Evidence 702 and met the requirements
of the Daubert and Kumho Tire v. Carmichael decisions. Judge Joyner
also took judicial notice, in the Mitchell case, that human friction ridges
are unique and permanent, including those visible in small friction ridge
areas, and granted the government's request to exclude the testimony of
three defense experts who would have testified that fingerprint comparisons
"are not scientific evidence" under Daubert.

Judge Pollak, the capable jurist in the United States v. Llera Plaza case,
who considered the Mitchell evidence and perhaps also that of one of the
Mitchell defense witnesses in another case (Frye hearing testimony in People
[of the State of New York] v. James Hyatt), rendered an opinion on January
7, 2002, that differed from that of Judge Joyner in the Mitchell case.
Judge Pollak ruled: (1) that qualified fingerprint examiners
could testify to the principles on which fingerprint identification rests
(uniqueness and life-time permanence, principles of which the court took
judicial notice), (2) to the methods used in discovering, visualizing,
and comparing latent fingerprints with prints of known individuals, (3)
to the similarities and dissimilarities between the prints so compared,
(4) that defense experts are be permitted to rebut the prosecution evidence,
but (5) experts were not going to be permitted to testify that the questioned
latent and the known inked print were produced by the same digit -- testimony
of a "match" that has been routinely admitted in all state and federal
courts since the Illinois Supreme Court decided People v. Jennings, 252
Ill. 534, 96 N.E. 1077 (1911).

The evidentiary basis for the ruling was, no doubt, in part the testimony
of a young Ph.D. holder, defense witness in the Mitchell case, who had
transformed his doctoral dissertation into a book-size manuscript published
as Suspect Identities -- a book critical of the fingerprint identification
process as used by law enforcement, and who had testified or sought
to testify in several fingerprint-challenge cases. The book is comprised
mostly of historical accounts (approx. 260 pages of its 311 pages of text),
related in a manner that, if anything, demonstrates the superficiality
of the author's understanding of that about which he writes. Other critics
in similar challenges to either fingerprints or handwriting comparisons
have included law professors who have a broad generalized knowledge in
one or several forensic science disciplines, but who lack practical experience
and training in conducting specific examinations of a technical nature,
and who seek to translate their knowledge of the law of evidence and their
literature study on a specific topic into judgments, however honestly held,
on the "validity" of specific forensic techniques.

Looking at the jurist's opinion from the viewpoint of a legal scholar having
taught "scientific evidence" for some 35 years, rather than from the perspective
of one who has also been involved in fingerprint research and latent print
comparisons for nearly half a century, I find the Judge Pollak's opinion
unwarranted by the Supreme Court's decisions that the court supposedly
follows.

The eminent trial judge's opinion in Llera Plaza recognizes that
the Supreme Court has indicated in Daubert v. Merrell Dow Pharmaceuticals,
Inc. (1993) that the test for reliability of a scientific technique was
to be a flexible one, and that the "factors" enunciated in Daubert were
not the only ones that might be appropriate. In fact, the Court also emphasized
the same points in Kumho Tire v. Carmichael (1999), stressing, again, that
the Daubert "factors" are not the sole criteria to be used and that more
flexible requirements may be appropriate in some cases. Despite the court
paying lip service to these principles, it then nevertheless proceeded
to apply rigidly ONLY the Daubert factors to fingerprint identification.

We can argue as to whether the judge's application of the criteria was
correct, of course, but totally apart from that consideration, it is this
writer's opinion that the court clearly gave an undue weight to "factors"
that pertain only marginally to the validity of fingerprint comparisons
and identifications. The opinion places an undue emphasis on one Daubert
factor ("peer review") that has been denounced in the scientific and legal
literature as chimerical and not indicative of reliability at all. As a
member for some 20 years of the editorial board of scientific journals
(among them the Journal of Forensic Sciences) and a reviewer of articles
submitted for publication, I can attest that the so-called "peer review"
involved in having an article approved for publication by a panel of editorial
board readers does not, in the least, establish that the premises of the
"approved-for-publication" article have any validity. But aside from that,
of course, the "peer review" on latent print identification has been more
stringent than that which has occurred in many other disciplines in addressing
reliability issues.

Judge Pollak took pains to discuss the methodology used in fingerprint
comparisons called ACE-V [Analysis, Comparison, Evaluation, and Verification],
and found the "evaluation" part not to be scientific because it involved
a subjective judgment, and perhaps also because the label ACE-V to describe
the comparison process had come on the fingerprint scene relatively recently.
Yet, the ACE-V process in which fingerprint examiners engage, rather than
being untested, is nothing more than a refinement, a clarification, and
an evolution of the comparison process that examiners have been using for
many decades. It's an improvement in that it bases the subjective ultimate
opinion of a latent print examiner upon the following of a described scientific
methodology - a protocol designed to have the subjective opinion of the
examiner depend on the following of objective criteria. Judge Pollak failed
to appreciate the significance of this improvement in methodology and,
instead, appeared to consider it as an untested novel principle.

The court's application of the Daubert "error rate" factor as an indispensable
ingredient of all "scientific evidence" would eliminate from the courts
nearly all medical, psychiatric, psychological evidence, and much crime
laboratory testimony based on diagnoses and opinions rendered in unique
factual settings, all of which involve subjective judgments based upon
the education, training, and experience of the experts. Certainly, there
is no law that removes from the purview of jury consideration expert opinions
based
on subjective evaluations. Justice Blackmun, author of the Daubert opinion
and its "factors," dissenting in another case [Barefoot v. Estelle,
463 U.S. 880, 896 (1983)] said that to suggest that no psychiatrist's testimony
ought to be admitted on the issue of future dangerousness - a very subjective
judgment and an issue on which the American Psychiatric Association had
opined its professionals could not offer a more reliable opinion than that
of an ordinary lay person - "is somewhat like asking us to disinvent the
wheel." I think Justice Blackmun's opinion applies equally to the admissibility
of latent print identification testimony, except that with fingerprints
there is a plethora of highly reliable and verified data that indeed supports
the validity of the evaluation techniques utilized.

I was struck by the fact that the judge's opinion apparently gave more
credence to the opinions of critics, including law professors, who had
not actually worked with latent print techniques, and made no reference
to the opinions of the many respected scientists who have authored peer
reviewed - which the recently published Suspect Identities book is
NOT - works during the past 100+ years. Perhaps the judge was under the
mistaken impression that scientists and skilled researchers have not investigated
fingerprint identification adequately. Perhaps the court believed that
this method of identification was one invented by "mere" police officers.
Certainly no mention was made in the opinion of the studies of scientists
like Dr. Harold Cummins, of the Tulane University medical school and a
renowned anatomist who, assisted by Dr. Charles Midlo, authored many scientific
papers on fingerprints and wrote respected books and articles on "dermatoglyphics,"
including the still relevant treatise, "Fingerprints, Palms and Soles"
(1943). Ignored also by the court are "peer reviewed" publications that
no one in the scientific community has ever exposed as erroneous, such
as the extensive writings of foreign scientists such as Dr. Edmond Locard,
Dr. Okros' book examining the heredity of papillary patterns, the American
scientists Bert Wentworth and Harris H. Wilder, and countless others. Indeed,
the author of the very first book on the subject, titled Finger Prints
(1892), Sir Francis Galton, a nephew of Charles Darwin, was not a
"cop" either. Galton was a respected and enlightened scientist. He was
not only medically trained (King's College, London, 1839), he also studied
mathematics at Cambridge (1840-1843), especially the mathematics of probability
with Belgian astronomer and mathematician Dr. L.A.J. Quetelet. Galton became
known as a renowned anthropologist after the major emphasis of his research
turned to genetics, biological variation, and human heredity. Apparently
all of this scientific work done by seasoned and well credentialed researchers
with academic standing, none of whose findings contradict or disprove the
accuracy of current latent print identification practices, can compare
to the eight-year part-time experience of a person who wrote a dissertation
on a topic he only read about.

What I believe is the most indefensible part of the opinion is that, after
agreeing expressly that fingerprints are unique and permanent - a fact
of which Judge Pollak took judicial notice - and that testimony about fingerprint
practices, observations, and comparisons may be presented to the fact finder,
the court then holds that an expert is not permitted to state an opinion
that two prints "match" or do not match because it involves a subjective
judgment. The very reason why experts are called to state their opinions
is to provide the fact finder with their evaluation of the meaning of factual
information which the jury cannot properly understand without such expert
input. The Supreme Court certainly never has required that only opinions
that can be mathematically tested, or that are "guaranteed to be perfectly
accurate, can support expert testimony. There is no legal prohibition in
the law against subjective "opinion" evidence. This is certainly true when
opposing experts are routinely permitted to testify to contrary opinions.
The subjective determinations made by properly trained experts in fingerprint
identification can be and have been validated, though perhaps not according
to the satisfaction of theorists for whom the mathematics of probability
is the only acceptable basis of opinion evidence. The Supreme Court in
Daubert specifically recognized the process of cross-examination and the
presentation of opposing testimony as the hallmark of proper challenges
to the accuracy of scientific opinions.

The insistence upon mathematical precision ands calculable error rates
has gained currency largely as a result of the astronomical probability
calculations used in DNA examinations, which have lulled fact finders (including
judges and lawyers) into a false sense of security about the purported
accuracy of an "identification." Yet, statistics calculating random
match probabilities of DNA characteristics, which are often said to be
as slight as one in several billion, are generally misunderstood by fact
finders and tend to overwhelm the jury. Witness the duplication which has
already occurred in fairly limited databases of DNA "matches" wherein as
many as 8 different alleles were found to be shared by more than one individual,
despite testimony that the random probability of such occurrence is calculated
to be negligible. DNA scientists predict even today that such duplication
of allele characteristics in two or more individuals is bound to
occur even when 13 different alleles (loci) on the DNA strand are tested.

Fingerprint identification does not rest, as does DNA analysis, on class
characteristics, but on individual ridge detail. The DNA of identical twins
is identical according to methods of analysis now available. By contrast,
it has been empirically established that the fingerprints of identical
twins are different in their individual ridge characteristics (now referred
to as "Level 2 detail" or Galton details). Which is the more "unique"?

Let me suggest that the Havvard (2 "v"'s, not "w") opinion (United States
v. Havvard, 117 F.Supp. 2d 848 [S.D.Ind. 2000], aff'd 260 F.3d 597 [7th
Cir. 2001) represents the correct view on the admissibility of testimony
about fingerprint matching evidence; it also tracks the position taken
by the courts in all the other cases which have been asked to decide the
Daubert issue in fingerprint evidence cases.

Professor
Andre A. Moenssens, J.D., LL.M., is the author, senior co-author, or editor
of more than 15 books, including "Fingerprints and The Law," "Fingerprint
Techniques," "Cases and Comments on Criminal Law" (in its sixth edition)
and "Scientific Evidence in Civil and Criminal Cases" (now in its fourth
edition). "Scientific Evidence in Civil and Criminal Cases" was co-authored
with Professor James Starrs and two other persons, and as admitted by Professor
Starrs during testimony in the US v. Mitchell Daubert hearing, Professor
Moenssens authored the fingerprint related content.

Professor Moenssens did pre-legal
studies in his native Belgium. He received his J.D. cum laude in 1966 from
the Illinois Institute of Technology, where he was Associate Editor of
the Chicago-Kent Law Review and won several scholarship awards. He received
his LL.M. from Northwestern University in 1967. A member of the Illinois
and Virginia bars, Professor Moenssens was a professor of law at IIT-Chicago-Kent
College of Law from 1967-1973, and professor of law at the University of
Richmond, Virginia from 1973-1995. The University of Richmond Trustees
elected him Professor Emeritus in 1996. During the academic years 1993-1995
he was visiting professor at West Virginia University in Morganstown, in
the William J. Maier Jr. Chair.

As a Fellow of the American
Academy of Forensic Sciences, trial lawyer, and consultant on forensic
evidence issues, he has also lectured internationally at continuing legal
education and scientific evidence conferences. Professor Moenssens teaches
Criminal Law, Advanced Trial Practice (Trial Advocacy IIR), Scientific
and Expert Opinion Evidence, Applied Forensic Evidence Seminar and Criminal
Procedure at the University of Missouri - Kansas City, School of Law.